Antifederalist No. 81 THE POWER OF THE JUDICIARY (PART 3)

Part 1: from the 12th essay by "Brutus" from the February 7th &
14th (1788) issues of The New-York Journal
Part 2: Taken from the first half of the 14th essay February 28, 1788.

In my last, I showed, that the judicial power of the United States under the
first clause of the second section of article eight, would be authorised to
explain the constitution, not only according to its letter, but according to its
spirit and intention; and having this power, they would strongly incline to give
it such a construction as to extend the powers of the general government, as
much as possible, to the diminution, and finally to the destruction, of that of
the respective states.

I shall now proceed to show how this power will operate in its exercise to
effect these purposes. . . . First, let us inquire how the judicial power will
effect an extension of the legislative authority.

Perhaps the judicial power will not be able, by direct and positive decrees,
ever to direct the legislature, because it is not easy to conceive how a
question can be brought before them in a course of legal discussion, in which
they can give a decision, declaring, that the legislature have certain powers
which they have not exercised, and which, in consequence of the determination of
the judges, they will be bound to exercise. But it is easy to see, that in
their adjudication they may establish certain principles, which being received
by the legislature will enlarge the sphere of their power beyond all bounds.

It is to be observed, that the supreme court has the power, in the last
resort, to determine all questions that may arise in the course of legal
discussion, on the meaning and construction of the constitution. This power
they will hold under the constitution, and independent of the legislature. The
latter can no more deprive the former of this right, than either of them, or
both of them together, can take from the president, with the advice of the
senate, the power of making treaties, or appointing ambassadors.

In determining these questions, the court must and will assume certain
principles, from which they will reason, in forming their decisions. These
principles, whatever they may be, when they become fixed by a course of
decisions, will be adopted by the legislature, and will be the rule by which
they will explain their own powers. This appears evident from this
consideration, that if the legislature pass laws, which, in the judgment of the
court, they are not authorised to do by the constitution, the court will not
take notice of them; for it will not be denied, that the constitution is the
highest or supreme law. And the courts are vested with the supreme and
uncontrollable power, to determine in all cases that come before them, what the
constitution means. They cannot, therefore, execute a law, which in their
judgment, opposes the constitution, unless we can suppose they can make a
superior law give way to an inferior. The legislature, therefore, will not go
over the limits by which the courts may adjudge they are confined. And there is
little room to doubt but that they will come up to those bounds, as often as
occasion and opportunity may offer, and they may judge it proper to do it. For
as on the one hand, they will not readily pass taws which they know the courts
will not execute, so on the other, we may be sure they will not scruple to pass
such as they know they will give effect, as often as they may judge it proper.

From these observations it appears, that the judgment of the judicial, on
the constitution, will become the rule to guide the legislature in their
construction of their powers.

What the principles are, which the courts will adopt, it is impossible for
us to say. But taking up the powers as I have explained them in my last number,
which they will possess under this clause, it is not difficult to see, that they
may, and probably will, be very liberal ones.

We have seen, that they will be authorized to give the constitution a
construction according to its spirit and reason, and not to confine themselves
to its letter.

To discover the spirit of the constitution, it is of the first importance to
attend to the principal ends and designs it has in view. These are expressed in
the preamble, in the following words, viz., "We, the people of the United
States, in order to form a more perfect union, establish justice, insure
domestic tranquility, provide for the common defense, promote the general
welfare, and secure the blessings of liberty to ourselves and our posterity, do
ordain and establish this constitution," etc. If the end of the government
is to be learned from these words, which are clearly designed to declare it, it
is obvious it has in view every object which is embraced by any government. The
preservation of internal peace-the due admission of justice-and to provide for
the defense of the community-seems to include all the objects of government.
But if they do not, they are certainly comprehended in the words, "to
provide for the general welfare." If it be further considered, that this
constitution, if it is ratified, will not be a compact entered into by states,
in their corporate capacities, but an agreement of the people of the United
States as one great body politic, no doubt can remain but that the great end of
the constitution, if it is to be collected from the preamble, in which its end
is declared, is to constitute a government which is to extend to every case for
which any government is instituted, whether external or internal. The courts,
therefore, will establish this as a principle in expounding the constitution,
and will give every part of it such an explanation as will give latitude to
every department under it, to take cognizance of every matter, not only that
affects the general and national concerns of the union, but also of such as
relate to the administration of private justice, and to regulating the internal
and local affairs of the different parts.

Such a rule of exposition is not only consistent with the general spirit of
the preamble, but it will stand confirmed by considering more minutely the
different clauses of it.

The first object declared to be in view, is "To form a more perfect
union." It is to be observed, it is not an union of states or bodies
corporate; had this been the case the existence of the state governments might
have been secured. But it is a union of the people of the United States
considered as one body, who are to ratify this constitution if it is adopted.
Now to make a union of this kind perfect, it is necessary to abolish all
inferior governments, and to give the general one complete legislative,
executive and judicial powers to every purpose. The courts therefore will
establish it as a rule in explaining the constitution; to give it such a
construction as will best tend to perfect the union or take from the state
governments every power of either making or executing laws. The second object
is "to establish justice." This must include not only the idea of
instituting the rule of justice, or of making laws which shall be the measure or
rule of right, but also of providing for the application of this rule or of
administering justice under it. And under this the courts will in their
decisions extend the power of the government to all cases they possibly can, or
otherwise they will be restricted in doing what appears to be the intent of the
constitution they should do, to wit, pass laws and provide for the execution of
them, for the general distribution of justice between man and man. Another end
declared is "to insure domestic tranquility." This comprehends a
provision against all private breaches of the peace, as well as against all
public commotions or general insurrections; and to attain the object of this
clause fully, the government must exercise the power of passing laws in these
subjects, as well as of appointing magistrates with authority to execute them.
And the courts will adopt these ideas in their expositions. I might proceed to
the other clause, in the preamble, and it would appear by a consideration of all
of them separately, as it does by taking them together, that if the spirit of
this system is to be known from its declared end and design in the preamble, its
spirit is to subvert and abolish all the powers of the state governments, and to
embrace every object to which any government extends.

As it sets out in the preamble with this declared intention, so it proceeds
in the different parts with the same idea. Any person, who will peruse the 5th
section with attention, in which most of the powers are enumerated, will
perceive that they either expressly or by implication extend to almost every
thing about which any legislative power can be employed. If this equitable mode
of construction is applied to this part of the constitution, nothing can stand
before it.

This will certainly give the first clause in that article a construction
which I confess I think the most natural and grammatical one, to authorise the
Congress to do any thing which in their judgment will tend to provide for the
general welfare, and this amounts to the same thing as general and unlimited
powers of legislation in all cases.

This same manner of explaining the constitution, will fix a meaning, and a
very important one too, to the 12th clause of the same section, which authorises
the Congress to make all laws which shall be proper and necessary for carrying
into effect the foregoing powers, etc. A voluminous writer in favor of this
system, has taken great pains to convince the public, that this clause means
nothing: for that the same powers expressed in this, are implied in other parts
of the constitution. Perhaps it is so, but still this will undoubtedly be an
excellent auxiliary to assist the courts to discover the spirit and reason of
the constitution, and when applied to any and every of the other clauses
granting power, will operate powerfully in extracting the spirit from them.

I might instance a number of clauses in the constitution, which, if
explained in an equitable manner, would extend the powers of the government to
every case, and reduce the state legislatures to nothing. But, I should draw
out my remarks to an undue length, and I presume enough has been said to show,
that the courts have sufficient ground in the exercise of this power, to
determine, that the legislature have no bounds set to them by this constitution,
by any supposed right the legislatures of the respective states may have to
regulate any of their local concerns.

I proceed, 2nd, to inquire, in what manner this power will increase the
jurisdiction of the courts.

I would here observe, that the judicial power extends, expressly, to all
civil cases that may arise save such as arise between citizens of the same
state, with this exception to those of that description, that the judicial of
the United States have cognizance of cases between citizens of the same state,
claiming lands -under grants of different states. Nothing more, therefore, is
necessary to give the courts of law, under this constitution, complete
jurisdiction of all civil causes, but to comprehend cases between citizens of
the same state not included in the foregoing exception.

I presume there will be no difficulty in accomplishing this. Nothing more
is necessary than to set forth in the process, that the party who brings the
suit is a citizen of a different state from the one against whom the suit is
brought and there can be little doubt but that the court will take cognizance of
the matter. And if they do, who is to restrain them? Indeed, I will freely
confess, that it is my decided opinion, that the courts ought to take cognizance
of such causes under the powers of the constitution. For one of the great ends
of the constitution is, "to establish justice." This supposes that
this cannot be done under the existing governments of the states; and there is
certainly as good reason why individuals, living in the same state, should have
justice, as those who live in different states. Moreover, the constitution
expressly declares, that "the citizens of each state shall be entitled to
all the privileges and immunities of citizens in the several states," It
will therefore be no fiction, for a citizen of one state to set forth, in a
suit, that he is a citizen of another; for he that is entitled to all the
privileges and immunities of a country, is a citizen of that country. And in
truth, the citizen of one state will, under this constitution, be a citizen of
every state....

It is obvious that these courts will have authority to decide upon the
validity of the laws of any of the states, in all cases where they come in
question before them. Where the constitution gives the general government
exclusive jurisdiction, they will adjudge all laws made by the states, in such
cases, void ab inilio. Where the constitution gives them concurrent
jurisdiction, the laws of the United States must prevail, because they are the
supreme law. In such cases, therefore, the laws of the state legislatures must
be repealed, restricted, or so construed, as to give full effect to the laws of
the union on the same subject. From these remarks it is easy to see, that in
proportion as the general government acquires power and jurisdiction, by the
liberal construction which the judges may give the constitution, those of the
states will lose their rights, until they become so trifling and unimportant, as
not to be worth having. I am much mistaken, if this system will not operate to
effect this with as much celerity, as those who have the administration of it
will think prudent to suffer it. The remaining objections of the judicial power
shall be considered in a future paper.

The second paragraph of sect. 2, art. 3, is in these words: "In all
cases affecting ambassadors, other public ministers and consuls, and those in
which a state shall be a party, the supreme court shall have original
jurisdiction. In all the other cases before mentioned, the supreme court shall
have appellate jurisdiction, both as to law and fact, with such exceptions, and
under such regulations as the Congress shall make."

Although it is proper that the courts of the general government should have
cognizance of all matters affecting ambassadors, foreign ministers, and consuls,
yet I question much the propriety of giving the supreme court original
jurisdiction in all cases of this kind.

Ambassadors, and other public ministers, claim, and are entitled by the law
of nations, to certain privileges, and exemptions, both for their persons and
their servants. The meanest servant of an ambassador is exempted by the law of
nations from being sued for debt. Should a suit be brought against such an one
by a citizen, through inadvertency or want of information, he will be subject to
an action in the supreme court. All the officers concerned in issuing or
executing the process will be liable to like actions. Thus may a citizen of a
state be compelled, at great expense and inconveniency, to defend himself
against a suit, brought against him in the supreme court, for inadvertently
commencing an action against the most menial servant of an ambassador for a just
debt.

The appellate jurisdiction granted to the supreme court, in this paragraph,
has justly been considered as one of the most objectionable parts of the
constitution. Under this power, appeals may be had from the inferior courts to
the supreme, in every case to which the judicial power extends, except in the
few instances in which the supreme court will have original jurisdiction.

By this article, appeals will lie to the supreme court, in all criminal as
well as civil causes. This I know, has been disputed by some; but I presume the
point will appear clear to any one, who will attend to the connection of this
paragraph with the one that precedes it. In the former, all the cases, to which
the power of the judicial shall extend, whether civil or criminal, are
enumerated. There is no criminal matter, to which the judicial power of the
United States will extend, but such as are included under some one of the cases
specified in this section. For this section is intended to define all cases, of
every description, to which the power of the judicial shall reach. But in all
these cases it is declared, the supreme court shall have appellate jurisdiction,
except in those which affect ambassadors, other public ministers and consuls,
and those in which a state shall be a party. If then this section extends the
power of the judicial, to criminal cases, it allows appeals in such cases. If
the power of the judicial is not extended to criminal matters by this section, I
ask, by what part of this system does it appear, that they have any cognizance
of them?

I believe it is a new and unusual thing to allow appeals in criminal
matters. It is contrary to the sense of our laws, and dangerous to our lives
and liberties. . . . As our taw now stands, a person charged with a crime has a
right to a fair and impartial trial by a jury of his country, and their verdict
is final. If be is acquitted no other court can call upon him to answer for the
same crime. But by this system, a man may have had ever so fair a trial, have
been acquitted by ever so respectable a jury of his country, and still the
officer of the government who prosecutes may appeal to the supreme court. The
whole matter may have a second hearing. By this means, persons who may have
disobliged those who execute the general government, may be subjected to
intolerable oppression. They may be kept in long and ruinous confinement, and
exposed to heavy and insupportable charges, to procure the attendance of
witnesses, and provide the means of their defense, at a great distance from
their places of residence.

I can scarcely believe there can be a considerate citizen of the United
States that will approve of this appellate jurisdiction, as extending to
criminal cases, if they will give themselves time for reflection.

Whether the appellate jurisdiction as it respects civil matters, will not
prove injurious to the rights of the citizens, and destructive of those
privileges which have ever been held sacred by Americans, and whether it will
not render the administration of justice intolerably burdensome, intricate, and
dilatory, will best appear, when we have considered the nature and operation of
this power.

It has been the fate of this clause, as it has of most of those against
which unanswerable objections have been offered, to be explained different ways,
by the advocates and opponents to the constitution. I confess I do not know
what the advocates of the system would make it mean, for I have not been
fortunate enough to see in any publication this clause taken up and considered.
It is certain however, they do not admit the explanation which those who oppose
the constitution give it, or otherwise they would not so frequently charge them
with want of candor, for alleging that it takes away the trial by jury. Appeals
from an inferior to a superior court, as practised in the civil law courts, are
well understood. In these courts, the judges determine both on the law and the
fact; and appeals are allowed from the inferior to the superior courts, on the
whole merits; the superior tribunal will re-examine all the facts as well as the
law, and frequently new facts will be introduced, so as many times to render the
cause in the court of appeals very different from what it was in the court
below.

If the appellate jurisdiction of the supreme court, be understood in the
above sense, the term is perfectly intelligible. The meaning then is, that in
an the civil case enumerated, the supreme court shall have authority to
reexamine the whole merits of the case, both with respect to the facts and the
law which may arise under it, without the intervention of a jury; that this is
the sense of this part of the system appears to me clear, from the express words
of it, "in all the other cases before mentioned, the supreme court shall
have appellate jurisdiction, both as to law and fact, etc." Who are the
supreme court? Does it not consist of the judges? . . . They will therefore
have the same authority to determine the fact as they will have to determine the
law, and no room is left for a jury on appeals to the supreme court.

If we understand the appellate jurisdiction in any other way, we shall be
left utterly at a loss to give it a meaning. The common law is a, stranger to
any such jurisdiction: no appeals can lie from any of our common law courts,
upon the merits of the case. The only way in which they can go up from an
inferior to a superior tribunal is by habeas corpus before a hearing, or by
certiorari, or writ of error, after they are determined in the subordinate
courts. But in no case, when they are carried up, are the facts re-examined,
but they are always taken as established in the inferior court.